bambi

being sued, what's next?

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Awesome. Thank you so much, I am so lost when I try to read the legal stuff, I have to re-read it several times to completely understand it, and then I still doubt myself. I'll check with bmc100 to find out for sure. It's not quite 30 days yet, but I'll let you know when it is. I'm not confident in myself at all for court, I'm still debating about getting an attorney for that, I'm just trying to see what happens up to that point, but I don't have the money to put towards a lawyer, so, I'll see how things go. I guess I keep hoping they will go away, but at this point they haven't done anything but try to scare me. (Which they've done already and isn't hard to do.)

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Think of it this way. These cases are won and lost in the process you are in now. The actual trial is RARELY where cases are won and lost. You can't just Perry Mason your way through a trial and pull it out without serious preparation before hand. 

 

I'm winging these statistics but I bet they're really close:

 

95% of these cases never get answered by the defendant at all.

97% never take advantage of discovery

98% never file a motion or "attack" in any way

99.5% never actually go to trial. Either the defendant settles right before trial, loses the MSJ or the plaintiff dismisses. 

 

So the likelihood of actually having to go through the trial process is very slim. BUT you have to prepare and litigate as though you have every intention of going through the trial and kicking their @$$!

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Oh I hope you are right.  I feel as tho I'm not preparing enough, but, I'll just keep plugging away at it, and hope it pans out.  I sure am losing a lot of sleep over it.  So my step here is to file my motion, and I just want to make sure I have it all.  On the first page, will be my motion, (previous post), the 2nd page will be the form for a notice of hearing, and the 3rd page will be certificate of service.  I will also attach my request for docs.  Am I good then?

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How does the attorney for the plaintiff find out about the hearing for the motion?  Does the court send him something or do I include that once a hearing has been scheduled?

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How does the attorney for the plaintiff find out about the hearing for the motion?  Does the court send him something or do I include that once a hearing has been scheduled?

 

Depends, but usually the party filing the motion notices the other side.

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OK, Thanks, I'll send that out with my copy of the motion to them.

 

Send it CMRRR. You don't want them delaying things with the old "we never got this" trick.

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OK, thanks, I will.  I'm sure they try to use any trick in the book.  I'm off to the court house this afternoon to file the motion, hopefully I won't have to make any corrections.

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So, I'm wondering about this, when you said make sure I send it CMRRR, will the attorney try the "trick", that he sent out of his answers to my ROGS, and he can't help if if I never received them?  

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as long as you have proof you sent them, he has to answer within the time frame.  If he tries to say he never got them, you have your cmrrr as proof he did.  He should send his answers the same way, if he did not, then that is on him to prove he sent them, not you.

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Ok, that's good.  I got a little worried about that.  I filed my motion (and I didn't even throw up), and they will send me and him a letter stating the hearing date.  Hopefully it won't be too far off, as my pre hearing trial date is 9/9.  

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I received my court date for the motion to compel, and it is for 8/30. which I find interesting because my pre trial hearing date is 9/9. so that is not even enough time for them to send me the RFD.  What do you think about this?  What if I haven't received the docs before the pre trial hearing?

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You'll have to wait and see what happens at your MTC hearing .......... see what the judge says.

 

 What if I haven't received the docs before the pre trial hearing?

 

 

No problem ........ a pre trial hearing is just to determine the status of the case.

You can always state that discovery is ongoing.

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Ok, thank you so much. I get a little nervous about all of this, it's so nice to be able to hear from the "pros" on what to expect.

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OK, sooooooo, today I got my answers to RFP.  Below are the originals I sent out.  I will give you a couple of his answers and you'll get the drift.

 

 

.   The original signed application establishing the account.

 2.   Charge slips bearing defendant's signature which establishes use of the account.

 3.   The original written agreement in which defendant allegedly agreed to the terms of the account.

 4.   A complete history of the account from day one, establishing the legitimacy of the balance sought.

 5.   Any document setting forth the choice of law provision.

 6.   Any document plaintiff intends to introduce at trial.

 

 7.  Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce.

 8.   Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed.

 9.   Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial.

 10.  Proof of mailing of monthly statements.

 11.  Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time.

 12.  Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."


 13.  Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder.

 

      14.   Letter(s) sent to defendant by plaintiff’s attorney, demonstrating an attempt to collect on the alleged debt.

 

      15.  Any and all communications from plaintiff and/or plaintiff’s attorney to the defendant explaining why plaintiff and/or plaintiff’s attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining defendant’s credit report(s).

 

     16.  Any and all credit report(s) plaintiff and/or plaintiff’s attorney obtained from any credit reporting agency concerning the defendant

 

     17.  Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and/or ”Account”.

      

     18.  Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to the alleged debt. 

 

     19.  Copies of all reports and documents utilized by an expert which plaintiff  proposes to call at trial, including the name, address, and job title as well as what they will be testifying about.

     20.  All exhibits which plaintiff proposes to introduce at trial.

 

 answers:

 

1.  Plaintiff is still attempting to compile the requested documents and, due to the age of the account, may not be able to produce the signed application.  Plaintiff will supplement this response if the documents can be retrieved pursuant to the court rules.

 

2.  The original signed charge slips are not maintained by plaintiff and therefore unavailable.

3.  same as 1

4.  Plaintiff objects to the request as it is unduly burdensome to produce 21 years of accounts statements.  Notwithstanding the objection, Plaintiff will provide statements in supplemental answers once the documents have been compile.

 

According to my credit report, this account was opened in 2003.  So, what's with the 21 years?

 

5, 6, 7, 8, 9, 10, same as 1.

 

11.  vague and ambiguous.

12.  no such doc. exists.

13. no such doc. exists.

14.Plaintiff objects as, by definition, any letter sent to defendant is already in my possession.

 

I never received any communication from them until I was served for the lawsuit.  A couple of weeks ago I did receive the the normal debt collection letter, and sent them a DV letter.  So I have never received any letter (until 2 weeks ago) demonstrating an attempt to collect on the alleged debt.

 

15., 16, 17,  objects.  not relevant

 

18. same as 1.

19. Will not call an expert witness.  (so where does this leave me as far as the affiant goes?)

20.  same as 1.

 

So now what.  I've got nothing, and now the motion has been scheduled for Aug. 30.  Do I still go through with it?

 

Sorry this is so long, I need lots of help.

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Not calling an expert witness has nothing to do with the affiant and should be considered irrelevant.

I'm sure it's in this thread; but what motion hearing is scheduled for Aug 30?.

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Motion to compel discovery.  They hadn't responded with the RFPD, but now I got this in the mail.

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Motion to compel discovery.  They hadn't responded with the RFPD, but now I got this in the mail.

OK. My guess is that it would be a hard motion to win. If you had not already filed the motion; I don't know if I would suggest that you filed it. However, you already have a hearing date; so it' a tough call. I am sure the plaintiff wants you to notify the court to dismiss the motion.

You must have some type of rule where you can send them a request for witness and evidence list; something like 40 days before trial. That way you would have all their evidence and ( a little) time to file MIL's to strike it.

One thing for sure: you've got them answering to you. It's important to be the one controlling the dynamics of the case.

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But in reality, I haven't received any production of docs.  I've only received his flimsy answers, and no proof of anything.  What about things like # 14, and what about the # of years (21), this account has only been open 10 years.  How can they not produce my signature for opening the account?

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But in reality, I haven't received any production of docs.  I've only received his flimsy answers, and no proof of anything.  What about things like # 14, and what about the # of years (21), this account has only been open 10 years.  How can they not produce my signature for opening the account?

You are right. I would then go to the motion hearing and argue your case. A lot of CC accounts are opened without signatures, so that part is not as important as people often think. It's very damaging to you if they produce a signature on an application; but not so damaging to them if they don't (people apply online, etc.. But I am not saying you don't fight that (you fight everything).

The 21 years may have been a type error and should have been 12 (which is still off, as they don't know anything about your alleged account) I would not say anything about the account only being 10 years old, I would just say you never had an account 21 years old (or whatever fits). In other words; I would not ADMIT to anything.

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So as far as the witness goes, I guess I didn't actually request a witness list, I requested an "expert witness" list, and he doesn't plan to call any "expert witnesses. So how do I have knowledge that the affiant is/was an employee of the OC and had direct knowledge of my account?

Flyerfan suggested sending another ROG with just one sentence requesting any info about any witnesses, etc. so how does this sound?

1. Copy of all employment information regarding the affiant on the affidavit sent with the summons and complaint, listed as Exhibit #1.

And then I should probably write something in about any witnesses they plan to call at trial.

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So as far as the witness goes, I guess I didn't actually request a witness list, I requested an "expert witness" list, and he doesn't plan to call any "expert witnesses. So how do I have knowledge that the affiant is/was an employee of the OC and had direct knowledge of my account?

Not sure what you requested, but I would want to request a witness and exhibit list about 40 days prior to trial (you would have to find out if there is a rule like that in your state). As far as having knowledge the affiant is who they claim and knows what they claim; you don't have proof of any of that. And even if they did produce a perfect affidavit to prove it up; I still would not believe any of it.

I would want a worm body in trial to cross examine, and make sure I did everything humanly possible to make that happen.

Flyerfan suggested sending another ROG with just one sentence requesting any info about any witnesses, etc. so how does this sound?

1. Copy of all employment information regarding the affiant on the affidavit sent with the summons and complaint, listed as Exhibit #1.

You could, but they will just object to it. It can't hurt though.

And then I should probably write something in about any witnesses they plan to call at trial.

Probably. They will object as it is premature however. But I would look for your rule about witness and exhibit list before trial as well. There should be some rule saying when you can request such a list, and they can only use against you (at trial) whatever evidence and witnesses are on the list.

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OK, thanks for the insight.  Now what do you think about this one:

 

 

 14.   Letter(s) sent to defendant by plaintiff’s attorney, demonstrating an attempt to collect on the alleged debt.

 

I never received a debt collection from them, until 2 weeks ago.  The letter was dated in Nov., but didn't get mailed until July 2013.  Obviously a mistake, but does that violate any laws, and obviously they can't produce this doc in court for me since it never got mailed before the lawsuit.  They never made any attempt to collect this debt from me before I was served with the law suit.  Is that legal?

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OK, thanks for the insight.  Now what do you think about this one:

 

 

 14.   Letter(s) sent to defendant by plaintiff’s attorney, demonstrating an attempt to collect on the alleged debt.

 

I never received a debt collection from them, until 2 weeks ago.  The letter was dated in Nov., but didn't get mailed until July 2013.  Obviously a mistake, but does that violate any laws, and obviously they can't produce this doc in court for me since it never got mailed before the lawsuit.  They never made any attempt to collect this debt from me before I was served with the law suit.  Is that legal?

I believe there is a FDCPA violation for not contacting you first with a dunning letter advising you of your right to dispute the alleged debt within 30 days and request validation (and if you don't dispute it, THEN they can sue you).

However, if I was going to do something like this (add a counterclaim for the FDCPA violation or file a new case) I would not ask them for the letter in discovery. I would just claim they never sent it and file the counterclaim (and I would try to find something else to add to it as well) I would not ask them for it specifically; I would just make the allegation and let them defend against it.

If you really do not plan on filing a suit for this violation; then I would caution you not to get sidetracked, & to learn all the elements of the case they have to prove against you, and to focus on that. But if you do plan on doing something with this; then don't ask them for the document, just go for the throat (a FDCPA counterclaim could give you some leverage).

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